The Employment Relations (Flexible Working) Bill has received royal assent and is expected to come into force in the summer of 2024.
The new legislation:
- requires employers to consult with their employees when intending to decline a request for flexible working (reflecting what is already good practice). Notably, the legislation does not set out a minimum standard of consultation, nor require consultation to be substantive or cover the options available;
- allows employees to make two flexible working requests in any 12-month period, rather than only one;
- reduces the time limit for an employer to respond to a flexible working request from three to two months; and
- removes the requirement for employees to detail the effects of their flexible working request on the employer or to include ways on how it might be dealt with.
Whilst the legislation no longer makes the right to request flexible working a day one right (as had been included in the draft bill), the Government has confirmed that this right will be introduced in new regulations. However, until these regulations are introduced (and there has been no sign of them yet) employees will still be required to have 26 weeks' service before they are able to make a request.
The legislation does not stop employers from refusing a flexible working request where there is a genuine business reason for doing so.
What should employers do now?
Employers should update their employee handbook and any flexible working policies to reflect these changes. HR teams and managers responsible for considering flexible working requests will need guidance on the new requirements. This should include training on the requirement to consult with employees.
Employers should continue to be alert to possible discrimination claims which can arise from refusals of flexible working requests (typically on the grounds of sex, age, disability or religion/belief).
Acas has launched a consultation on updates to its Code of Practice on handling flexible working requests. The draft Code suggests that employers should take a positive approach to flexible working and should not refuse requests as a default. When published, employers should ensure they follow the updated Code. Although it will not be legally binding, breaches will be taken into account by employment tribunals in cases related to flexible working requests.
Conclusion
The new legislation and draft Code reflect the shift in ways of working in the post-Covid era. Employers should carefully consider and, where the role and business operations allow, accommodate flexible working requests in order to retain a competitive edge when it comes to attracting and retaining talent.
If you would like advice on the new legislation or flexible working requests, please contact our Employment Team.
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